Wong v Wong

Wong v Wong - [2015] NSWDC 274 - NSWDC 2015 case summary — Zoe

[3]

The evidence in these proceedings

The evidence may be divided into the following categories: 1. Contemporaneous reports of calls for assistance and the contents of those records, including the ambulance officer's notes and the 000 call made by the defendant. The contents of these reports and records are not in dispute; 2. The evidence of Mr Khan, the next door neighbour, who did not see the assault but came out after hearing the plaintiff call for help. This evidence is essentially unchallenged and therefore reliable; 3. The notes taken by the police officer, Senior Constable Catto, who took the defendant on a "walkthrough" of the events and took a series of photographs of the relevant areas pointed out by the defendant. He also interviewed the plaintiff the following day at the hospital. Some caution needs to be exercised when considering the accuracy of statements made by the plaintiff to the police officer as no interpreter was present and he was about to go into surgery for operation on the injury to his leg, but the accuracy of his reports and photographs, and the impartiality of his opinions, means that this evidence is reliable; 4. The evidence of the plaintiff, the defendant and the defendant's son, which was the subject of extensive cross-examination; and 5. The evidence of expert medical witnesses as to the mechanics of the fall
The issue of the credit of the plaintiff and defendant was a significant issue. Counsel for the plaintiff and for the defendant each pointed to inconsistencies and implausibilities in the evidence of the plaintiff and the defendant.
The correct approach to the credibility of witnesses by a trial judge has been the subject of many decisions in the New South Wales Court of Appeal. In Hasler v Singtel Optus Pty Ltd (2014) 311 ALR 494 at [156]-[157], the Court of Appeal described the approach of the primary judge to the contemporaneous documentary and testimonial evidence as follows: "[156] Between [147] and [214], over some 18 pages of reasons, the primary judge recorded and made findings about substantially the whole of the contemporaneous documentary evidence and testimonial evidence on this point. Although he did not deal with every piece of contemporaneous documentary evidence, the gravamen of Optus' complaint was that in light of the cogency of the documentary evidence, the absence of obvious witnesses (such as Mrs Curtis and Mrs Hasler) and the vagaries of human recollection eight years later, there was reviewable error in failing to find in accordance with the documents. Optus candidly recognised that his Honour's finding was, expressly, based upon opinions concerning the credibility of witnesses, especially that of Mr Tull and Mr Trent Hasler, whom he regarded as reliable and having significant probative weight. In particular, Mr Tull (a truck driver) was found to be independent and claimed to have an actual recollection of transporting Optus products from Campbelltown to Lidcombe over a number of months, commencing in winter. [157] The careful and extensive nature of the reasoning process of the primary judge in this respect warrants recording, for this was not merely a case where the judge states that he or she prefers the testimony of one witness over another, in part by reason of demeanour. To the contrary, there was an engagement with the force of Optus' case, including a discounting of the testimonial evidence of most of the defendants' witnesses and an appreciation of the force of the contemporaneous documents. The judgment is the opposite of what is on occasion seen, when findings are made without "a consideration of the real strength of the body of evidence [the losing party] presented": State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at 321; cf Bunnings Group Ltd v Borg [2014] NSWCA 240 at [36]."
A trial judge must take into account the potential for inconsistencies between human memory and contemporaneous records, and the need to evaluate the evidence of each of the witnesses in the context of the whole of the evidence. In those circumstances, the need for "careful reasons" of the primary judge (Hasler v Singtel Optus Pty Ltd at [167]) is essential. As is set out in more detail below, I have given particular weight to the contents of contemporaneous records. One of these, namely the "walkthrough" by the defendant of the scene of the accident which was conducted by Senior Constable Catto with the defendant, appears to favour the version of events given by the defendant in terms of consistency of report. However, other contemporaneous records tend to favour the version of events given by the plaintiff.
I have also given considerable weight to the evidence of independent witnesses whose credit is unchallenged and whose version of events was substantially not the subject of cross-examination. These witnesses include Mr Khan, the next door neighbour, and Ms Fung, who telephoned the police and ambulance at the plaintiff's request. Where their evidence is inconsistent with the evidence of the plaintiff or defendant, I have generally preferred their evidence.
Mr Khan was not cross-examined about a number of disputed issues relevant to the defendant's case, such as whether the plaintiff shouted abuse at the defendant after the incident, or about his observations, such as his statement that the defendant was washing his car both prior to and after the incident. I have had regard to the principles enunciated in Brown v Dunn (1893) 6 R 67 as explained by the NSW Court of Appeal in Vines v Australian Securities and Investments Commission [2007] NSWCA 75 at [60] - [62] and, most recently, in Bradley v Matloob [2015] NSWCA 239 at [5] - [7] per McColl JA.

[4]

The evidence of the plaintiff

The plaintiff met Mrs Amy Chui in about May 2012. She had recently divorced the defendant, and was living in the premises at 64 Endeavour Street Seven Hills with her son, Maan Wong, a university student. Although the defendant had only moved two doors away and lived in number 60 Endeavour Street, she and he lived separate lives.
Ms Chui asked the plaintiff to perform regular maintenance and gardening from approximately June 2012. The plaintiff was certain that he did not start to do this work until after the defendant had moved out, which the defendant said occurred on 19 July 2012. Whatever the starting date, the plaintiff was at the premises fairly regularly from that time on, and was paid cash in hand by Ms Chui. The plaintiff's acquaintances, such as Ms Fung, knew he was working there (T 90).
The defendant, who lived only two doors away, also knew that the plaintiff was working there, according to the plaintiff. He said that during the first two weeks that he started working there, the defendant looked at him in a fixed way on several occasions, and on one occasion made a rude gesture (T 84).
In October 2012 Ms Chui told the plaintiff she was going on holiday to China. She gave him a key to the house and a list of chores to do while she was away. In the course of performing these duties, the plaintiff found (in early December 2012) the defendant's car parked in the driveway, blocking access to the garage, which the plaintiff was supposed to paint. He asked the defendant why he had parked there and whether his ex-wife had given him permission to do so. According to the plaintiff, the defendant replied "Go to hell, it's none of your business" (Exhibit B, paragraph 9). The defendant did, however, remove the car (the defendant's statement says "I moved the car accordingly": Exhibit 6, tab 3, paragraph 5).
While this appears to have been the only conversation between the plaintiff and defendant before the incident, it is clear that each of them knew who the other was. The plaintiff knew that the defendant was Ms Chui's ex-husband. The defendant, who visited the premises to see his son, knew that the plaintiff was at the premises carrying out work (he conceded that the plaintiff was "maybe…employed" by his former wife: T 79).
On the day of the incident (21 December 2012) the plaintiff arrived at Ms Chui's home to perform handyman duties some time between 1.30 pm - 2 pm. Ms Chui was still in China, but the plaintiff had his own key and maintenance equipment, and knew where everything was stored. He saw a blue car parked in the driveway and knew that it was the defendant's car. He turned on the hose and began to water the front lawn. He described what happened very shortly afterwards in his statement (Exhibit B) as follows: "11. I started to water Amy's front lawn as I normally did. After I started watering, the defendant stood up on the other side of the light blue car. I had not seen him before that and had not realised he was there. He said (in Cantonese): "I want to hit you earlier." I said "Why?" 12. The defendant then ran towards me and jump-kicked me around the chest. As he was doing this I threw down the hose and put my arms up, crossed together, to defend myself. The kick connected with my arms and the force pushed me backwards. I fell backwards onto the ground, putting my hands behind me to cushion the fall. I landed on the grass. 13. The defendant then came up to me and used his right leg to kick or stomp down on my left leg, hitting hard against the middle of my left thigh. I heard a crack and my left leg involuntarily bent at the knee and stayed in that position. I tried to stand up but I couldn't. My leg was very painful. I realised the defendant had broken my leg. 14. The defendant then used his left leg to try to kick me twice around my right chest area. I put my right arm up to protect myself and his leg connected with that arm. My right arm hit against my body because of the force."
The plaintiff observed the neighbour come out of his house and called to him: "15. I then saw a neighbour, an Indian man, come out from his house at 62 Endeavour Street which is next door to Amy's house. I called out to him "My friend, please help me, call the police, he kicked me, he broke my leg." He replied "I have called the police already." I said "Thank you."" (Exhibit B, paragraph 15)
The plaintiff then called his friend, Ms Kai Kwai Fung, and had a conversation with her as follows: "17. At 1:58pm I called my friend Kai Kwai FUNG using my mobile phone and spoke to her in Cantonese. I said to her words to the effect of: "Amy's ex-husband kicked my leg and broke it. I need you to call an ambulance. I'm still on the ground at the front of Amy's place." I asked her to call them for me because my English is poor."
The plaintiff told the police officer who came to speak to him: "He [the defendant] hit me and broke my leg." (Exhibit B, paragraph 18)
He said he was asked if he had wet the defendant with his hose and said: "No, I didn't wet him. Please, you can touch his clothes, check if they are wet or not." (Exhibit B, paragraph 18)

[5]

Is the plaintiff's account of the incident reliable?

The defendant submits that this account is inconsistent with the plaintiff's evidence in cross-examination. This was as follows: "A. INTERPRETER: When I was watering the lawn I could not see anybody at the car, and I also did not know that this car belong to him. I thought that it was the - his son's friend's car and so I continued to water the lawn and the, the hose - the water was very slow, because I was putting the, the lawn on so I could not turn on the water tap very strongly. And suddenly he was standing up right there, I could hear his voice and I, and I looked up and I saw him, he was rushing towards me and he was swearing at me saying that, "I wanted to have hit you for very long time," meaning that he, he, he had intention to hit me for a very long time. So I immediately defend myself with my arms up. I lost my balance and I fell onto the ground and my both hands were supporting myself on the lawn, and then his feet - his, his feet was stepping on my feet, and then I heard this sound. I saw that my leg was not bent in that position. I have never seen my leg bent in that position."
The plaintiff went on to say (T 33) that when the defendant started rushing towards him and swearing at him, this was preceded by the statement, "I wanted to hit you for a very long time", to which the plaintiff replied, "Why?"
The plaintiff gave this evidence a second time: "A. INTERPRETER: Then he kicked me but I raised my hand to defend myself and so I lost my balance and I fell down onto the ground. And then he stamped on my leg. And then he used his left leg to kick me on this side and twice. And I saw an Indian who was living next door so I said to him, "Friend, friend, this person is hurting my leg and breaking my leg. Can you ring the police?" And the Indian friend said that, "I've already called the police." I said, "Thank you. Thank you." And at that time I also rang Kai Kwai Fung. I said, "Mrs Lowe, Mrs Lowe, can you call the police and ambulance? This person has broken my leg."" (T 33-34)
The plaintiff described both in his statement and in his evidence that the defendant "jumped kicked" (T 34) him, launching himself into the air and that the plaintiff raised his arms to defend himself. Contrary to the submissions of counsel for the defendant, I am satisfied that his account of the evidence remained consistent throughout the cross-examination. Counsel for the defendant also pointed to the inconsistency between the plaintiff's account of Mr Khan's saying "I have called the police already" and Mr Khan's evidence that he said he would call the police. I consider this to be of no importance. The plaintiff was in pain and his recall of this conversation is likely to be affected.
The defendant also submitted that the plaintiff's evidence about where the incident occurred, and where he fell, was confused and inconsistent. The plaintiff was shown a series of photographs and asked to mark with an X the relevant positions of himself and the defendant. The plaintiff identified where the defendant was standing near the car, and identified where he was when he fell. He thought the car was parked back to front; it is clear from the photographs that this is not the case. However, the significance of this inconsistency is doubtful. It is not a fact of any significance to the issues in question.
The plaintiff denied that he approached the defendant and started yelling at him telling him to move the car and saying, "You don't have permission to be at the property and leave immediately" (T 37). He also denied that he approached the defendant with the garden hose and begun to spray the defendant with water (T 37). He also denied that he continued to shout abuse at the defendant while sitting on the ground with a broken leg.
The plaintiff also denied the mechanics of the accident as postulated by the defendant: "Q. I suggested to you before that, after pushing him over, you approached him and adopted a fighting stance, raising your fists. You were standing a vicinity which I am going to mark generally with a circle. Do you agree or disagree? A. INTERPRETER: No such thing. Q. After you adopted that fighting stance, the defendant got to his feet and, with both of his hands, he pushed you out of the away? A. INTERPRETER: No such thing. Q. When he pushed you away you lost your balance, you tripped at the base of the palm tree, which you can see there in the corner of that third photograph? A. INTERPRETER: No such thing. Q. Then you fell over on your left side? A. INTERPRETER: No. Q. With your thigh landing across a small raised stone retaining wall? A. INTERPRETER: No. Q. Then you rolled over onto your back? A. INTERPRETER: No, not possible. Q. And onto the grass? A. INTERPRETER: I fell to the ground because he kicked me." (T 39)

[6]

Did the plaintiff spray water on the defendant?

The defendant's case is that he was approached by the plaintiff, who abused him and sprayed water on him from the garden hose that he was carrying. Senior Constable Catto records that the defendant had a wet patch on his shirt. The defendant principally relies upon the plaintiff's answers to Senior Constable Catto (in hospital, the following day) to attack the credibility of the plaintiff.
It was put to the plaintiff that he had pointed the hose at the defendant and sprayed him with water, and then pushed him over the low brick arch so he landed on his back in the garden, after which the plaintiff adopted a fighting stance, raising both arms and making fists (T 37 - 38): "Q. So just like on the occasion before, when you saw the red car in the front yard of Amy's house, you're the one who approached him and told him to leave? A. INTERPRETER: Not the case. Q. My client at the time you were saying this to him was polishing the blue car and he ignored you? A. INTERPRETER: I don't agree. Q. Then you approached him with the garden hose and began to spray him with water? A. INTERPRETER: I don't agree. Q. So you say you never sprayed him with water? A. INTERPRETER: Correct. Q. I want to suggest to you that, as you were spraying him with water, you continued to say to him, "Leave the house immediately. You don't have a right to come here." A. INTERPRETER: No such thing. Q. As you did this, he moved towards you. Is that correct? A. INTERPRETER: I don't agree. Q. Then you, as he moved towards you, you threw down the hose and you pushed him such that he fell backwards over a small brick arch onto his back in the garden? A. INTERPRETER: I don't agree. Q. At no stage did he jump kick you? A. INTERPRETER: I don't agree. Q. When you say that he jump kicked you, you're telling a lie? A. INTERPRETER: I did not lie. Q. When you tell her Honour that you didn't point the hose at him and spray him with water, you're telling a lie? A. INTERPRETER: I did not lie. Q. After you pushed him over the low brick arch and he landed on his back in the garden, you moved towards him? A. INTERPRETER: No such thing. Q. You adopted a fighting stance, raising your arms, both your fists? A. INTERPRETER: No such thing."
Where was the garden hose during these events? There is no doubt that the plaintiff was watering the garden at the time of the incident and although there is no evidence to this effect, it appears that the hose was dropped during the incident.
As is set out in more detail below, Senior Constable Catto, when he attended the scene approximately 20 minutes after the incident, observed that the defendant's shirt had a large wet spot on it. There were also some drops of water on the defendant's motor vehicle.
The amount of water observed on the defendant is hard to measure from the evidence, but it is clear he was not completely wet through; he had a wet patch on his shirt and partially on his trousers below the belt. He was not drenched and he did not give evidence of needing a towel to dry himself off.
Counsel for the defendant submits that on a very hot day the water from the drenching would have largely evaporated by the time that the police officer arrived. Since the police officer would have been making his observations, at the latest, approximately 20 minutes after the incident, I consider this explanation implausible.
There are four potential explanations for the defendant having water on his clothes: 1. The plaintiff pointed the hose at him and sprayed it, as the defendant claims. If so, the defendant's clothing would have been quite wet, as would the defendant; 2. The defendant had been using water himself to wash his own car, this being the description of what the defendant was doing given by the next door neighbour Mr Khan (see also paragraph 6 of Maan Wong's statement taken by the police on 21 December 2012) and this is the source of the water on the defendant and on his car; 3. The defendant deliberately wet himself, as the plaintiff told Senior Constable Catto in hospital; or, 4. The defendant was accidentally sprayed with water in the circumstances of the assault on the plaintiff, who was holding a hose for the purpose of watering the garden at the time of the incident. It is not in dispute that the hose was connected to the water for the whole of this time; the defendant's son, Maan Wong, told police in his statement (Exhibit 6, tab 4, paragraph 14) that he went to turn off the hose when the defendant telephoned police.
The day after the incident, the plaintiff was asked questions by Senior Constable Catto about the circumstances in which the defendant had become wet. It is a significant issue, in relation to the plaintiff's credibility, that he acknowledges that Senior Constable Catto came to the hospital shortly before he was about to go into surgery, but that he denies that Senior Constable Catto asked him any questions. It was put to the plaintiff that he falsely made a statement to Senior Constable Catto that he saw the defendant wet himself.
For the reasons set out in the section of this judgment summarising the evidence of Senior Constable Catto, I am of the view that the medical condition of the plaintiff, and his very limited understanding of English mean that the plaintiff's belief that he was not asked any questions by Senior Constable Catto, is mistaken, but is not a mistake which is adverse to his credit. I am also satisfied that his answers to Senior Constable Catto, in broken English, without an interpreter, and shortly before surgery, should not be relied upon.
Taking all of the above into account, the most likely explanation for the defendant becoming wet was that he became involved in a physical altercation with a man holding a garden hose who was engaged in watering the garden.

[12]

The evidence of the next door neighbour, Mr Ziamud Khan

Although Mr Khan did not see the assault, he made three relevant observations. The first of these was that he heard the plaintiff calling out for help, the second was the location of where the plaintiff was lying at the time, and the third is that his evidence does not refer either to seeing the defendant's son at the scene, or to hearing the plaintiff say the words attributed to him by the defendant and his son.
Mr Khan sets out the relevant events in his statement as follows (Exhibit C): "5. On the afternoon of Friday 21 December 2012 I was inside my house. I heard a loud voice screaming from out the front of number 64. It was a man's voice. He was screaming out: "Help me, help me. Somebody call the police please." He said this a few times in a pleading tone. I could not see who it was, because I was inside. 6. He kept screaming out "Help me, help me. Somebody call the police please", so I got up and went outside onto my front balcony to see what was happening. I went to the end of my balcony closest to number 64. From there I could see the person who was screaming out. It was Georges Wong. 7. Georges was sitting on the grass in the front garden of 64 Endeavour Street. He was facing towards the palm tree in the front garden. His feet were just over a metre from the base of the palm tree and his body was about 2 or 3 metres from the palm tree. Annexed and marked "A" is a photograph showing a person sitting in the same location as Georges was. 8. At this time I also saw Martin Wong from my balcony. He was standing next to his car, washing it. We did not say anything to each other. 9. Georges saw me and said: "Please, call the police, my leg's broken." I said "OK, I'll ring up". 10. I then rushed back inside my place and had my daughter Shabnam Qureshi ring the police. She called Blacktown police station directly. 11. I then went back outside onto my balcony and waited for the police to arrive. During this time Georges stayed in the same spot on the grass and Martin continued to wash his car."
Mr Khan was only briefly cross-examined (T 71ff). He repeated the observation in his affidavit that the plaintiff's legs were pointing towards the palm tree and not towards the house (T 72). He also repeated his evidence that he had said to the plaintiff "OK, I will ring up" and not that he had already rung the police (T 72).
Mr Khan was not cross-examined about his observation that he saw the defendant standing next to his car washing it (paragraph 8, Exhibit C) or that he "continued to wash his car" (paragraph 11). Nor did he say that he saw the defendant's son, or that he heard the plaintiff calling out or saying the words attributed to him by the defendant and his son.

[15]

The evidence of the defendant

The evidence proceeded by way of statement. In his statement, the defendant described the circumstances of the assault as follows: "9. At or around 2:00pm, the plaintiff arrived at the Property. The plaintiff saw me and began to yell at me. He said that I did not have permission to be at the Property and told me to leave immediately. I remember him saying the words "You're not meant to be at this house" or words to a similar effect. I paid no attention to the plaintiff and continued to polish my car. 10. The plaintiff then ran to the other side of the Property, picked up a garden hose and began to spray me with it. He managed to soak my t-shirt and shorts and spray water into the inside of my car. 11. I told the plaintiff to stop spraying me. The plaintiff continued to shout at me saying "You have to leave the house immediately. You don't have the right to come here". I replied to him: "Who are you? You don't have the right to do this, stop, stop". Then I put down my washcloth and began walking towards the plaintiff. 12. The plaintiff threw down the hose from his hand onto the side of the brick arch causing the tap to break apart. The plaintiff then raised both of his hands, rushed towards me and pushed me over a brick arched bridge. I fell onto the lower part of the front yard. This caused me to deeply scratch and cut both of my legs. 13. Before I could manage to stand up, the plaintiff walked towards me from the top part of the arch to the lower part where I had fallen. The plaintiff raised his fists towards the front of his face and made a fighting stance. 14. I stood up and I used two hands to push the plaintiff in his shoulder away from me. The plaintiff tripped and fell over the edge of a stone block on the retaining wall and slid down the retaining wall onto the lower ground next to a palm tree. 15. The plaintiff started calling for help. He was shouting "Help, this guy broke my leg. This guy wants to kill me. Can someone call the police?" 16. I walked to the porch and saw that my son had come outside the front door. I asked him for his mobile phone so that I could call the police. I called the police and sat on the front porch while I waited for them to arrive. 17. The defendant [sic] stayed on the ground where he had fallen and continued to yell at me in Chinese. The closest meaning in English is "You are a useless shit man. You completely rely on your ex-wife. It was not fair that you took two houses from the divorce. I am the judge to make it fair today for Amy and you will go to jail when the police arrive". (Exhibit 6)
The defendant was cross-examinated about the difference between the version of events given in: 1. His statement; 2. The 000 call; 3. His statements to Senior Constable Catto at the scene and in the ERISP; 4. His statements in the first Defence he filed; and 5. The version of events given by other witnesses.
The first issue of significance was whether the defendant knew who the plaintiff was. This is of significance because of the contents of the 000 call, where he told the police that an intruder with no right to be there had come to "my property" and assaulted him.
The defendant was asked in cross-examination: "Q. When did you first see the plaintiff? A. First see or - what do you mean see? Q. See with your eyes. When did you first see him? A. Maybe late December - late 2012. And I don't know - because I didn't see his, his face, I just know a, a man doing job over there. I don't know, I don't know that guy is this guy. Q. Well you'd looked out from your place at number 60 and seen the plaintiff, hadn't you? A. Sometimes. Sometimes I, I just saw - I just notice one person doing job over there. That's it. Q. So what jobs did you see him doing? A. I don't know, I didn't pay attention to that. Q. But you looked out of number 60 and saw him going to number 64, is that right? A. Yeah a person sometimes go there. Not all the time. Q. When you say a person, did you see him or not? A. I'm not quite sure - I just know a person because I didn't pay any attention to, to a guy to do work for, for that house. Q. But your understanding was that there was somebody who was going‑‑ A. Yeah. Q. ‑‑and doing work regularly at Amy's place, is that right? A. Sometimes do, do works for, for his house. I don't know who the guy is. Maybe not this guy, I don't know. Q. I suggest that you saw the plaintiff going over there regularly and you thought he might be Amy's new boyfriend, is that correct? A. No, I never pay attention to this. Q. You never thought that he might be Amy's new boyfriend? A. I never - it - I don't care this, I doesn't - I didn't know. Q. The thought didn't cross your mind that he might be Amy's new boyfriend? A. Not at that time. Q. When did that cross your mind? A. Long after, maybe two year - one or two years - until my son told me, George, as soon as George know my ex‑wife, he start courting her. That's my son told me later. Long, long after the‑‑ Q. Long after the incident? A. Yeah, yeah, long after. Q. See what I suggest is that you felt jealous that this new man was coming over to Amy's place. A. No, never. I don't know what relation between he and my ex‑wife. Q. You only knew him as somebody doing work‑‑ A. I just know - yeah, maybe he - she employ someone to do, do some kind of work for her. I don't know this, at all." (T 79 - 80)
The defendant was also asked about the circumstances in which the plaintiff asked him to move his car in early December 2000: "Q. Then the first time you actually met him was late 2012, correct? A. Yeah, December - early December in my memory. Q. You had your car parked in the driveway? A. I did, yeah. Q. That was a red car at that time? A. Yeah red car, at that time I drove a red car. Q. He asked you or suggested that you move your car? A. Yeah he come straight to me, yeah, and order me to remove the car. He said I don't have permission to park here. Q. Yes, he wasn't particularly polite in the way that he asked you, was he? A. Sorry? Q. He wasn't very polite in the way he asked you, is that right? A. He - yeah he didn't polite. Q. He said, "Why did you park your car here? Do you have permission from your ex‑wife to park here? You see me working every day here. Your house has two garages, why don't you park there? I need to get access to the garage, you should move your car," or something like that? A. No, no. He didn't say, "You see me every day working here," no, he didn't. He said, "Just you - who give you the permission to park your car here? You don't have the permission to come - to park your car here. There are so many space on the street and in your house. Why you park here? You get out straight away." He was so aggressive. Q. How far away from you was he when you say he said those things? A. A few metres. He come straight to me because at that time I remember I talking to my son in the porch, and then he get straight to me and order me to move the car. Q. After he told you to move the car, you then moved it, is that right? A. Sorry? Q. After he told you to move the car, you moved it? A. Yeah I ..(not transcribable).., I didn't talk to him, and I, I was really surprised why a guy come to, to ask me to, to move my car and then I - because it's time for me to go that - at that moment, that's why I just moved the car and go straight to, to work. Q. Did he say he needed access to the garage, or something like that? A. No, never. All things has been finished at that time‑‑ Q. I suggest he said he needed access to the garage? A. No, haven't. Q. But in any event you moved your car because you understood he needed to do some work there, correct? A. No I didn't know he do it - because I haven't seen - he come for long time. He haven't been there for, for a long time and all the works has been finished. Q. Well you didn't think he was some burglar or something, did you? A. Sorry? Q. You didn't think he was a thief coming to steal things from the property or something? A. No, otherwise - no. I, I, I don't think‑‑ Q. Otherwise you would've called‑‑ A. Otherwise my son would kick him out. Q. So you knew he was someone who was there with Amy's permission? A. This - I didn't think about this because he, he, he told me to leave and then that - at that moment it's time for me to go as well. That's why I go straight away. Q. But you understood that he was there to do work for Amy, correct? A. At that time I don't know. Q. I suggest to you that you saw him going there regularly, you got jealous and then when he ordered you to move your car you didn't like it, correct? A. No I just surprised. I have - because I got ..(not transcribable).. didn't like, like it." (T 79 - 80)
This is very different to the description of the plaintiff that the defendant gave when he made a 000 call (this call was played in court and its contents recorded on the transcript: T 120 - 123. I propose to go through this call sentence by sentence.
The first statement he made to the operator was that he "was hit by the other guy": "Q. That was a lie, wasn't it? A. Not a lie. I, I been attacked. Q. Just a moment ago you admitted that he never hit you. Correct? A. But this my, due to my English I don't, I can't explain exactly meaning, you know, that I have been attacked. I, what I say, but "hit" and "attack" in my mind is the same thing." (T 120)
However, that is a minor issue. The next statement by the defendant not only repeated that the plaintiff had "hit" him but described him, more importantly, as: "An intruder come [sic] to my place and then hit me." (T 121)
The defendant was asked both about this second use of the word "hit" and the description of the plaintiff as "an intruder": "Q. "An intruder come to my place and then hit me." That's what you said, isn't it? A. Yeah. In my mind, "hit" and "attack" same thing. Q. It was just another lie, wasn't it? A. No. Q. It was a lie because you knew he didn't hit you. Correct? A. I don't know what is hit and attack. "Hit" and "attack" in Chinese is the same thing, same meaning, but I don't know in English it's different meaning. You, you can't just set, set me up like this. Q. It was a lie because he wasn't an intruder. Correct? A. No, he's a intruder. He's trespass. Q. An intruder is someone who is not meant to be there. Correct? A. He, he's not living there. Q. You knew perfectly well that he was meant to be there to do jobs for Amy, didn't you? A. No. Q. That was your evidence yesterday, wasn't it? A. Finish the job long time ago." (T 121)
Mr Stretton, in his written submissions (paragraph 65(b)), draws my attention to the personal attack on him ("set me up like this"). It is not to the credit of the defendant that he would make such an allegation.
Any doubt that the defendant, by "intruder", meant "trespasser", as opposed to someone he did not know at all, was dispelled by the next sentence played to the court, where the defendant was heard to say "I don't know the person at all": "Q. Let's go over what was said there. You said, "I don't know the person at all," do you agree? A. Yeah, I don't know him. … Q. You were trying to make it sound like you were the victim of an unknown intruder. Correct? A. What does that mean? Q. You were trying to make it sound like you had been the victim of an intruder whom you didn't know. A. That's the truth, because I didn't know this guy at all. Q. You were trying to make it sound like you were still scared? Correct? A. That's what I, I feel at that moment. I am not trying to making something. That's what I feeling at that time. Q. You were trying to make it sound like you were still in immediate danger, weren't you? A. I, I don't know." (T 121)
What the defendant said after "I don't know this person at all" was "Please come here, he's here now", which the defendant agreed he had said in an urgent tone (T 122). He also agreed that he had described the place where this incident occurred as "my property": "Q. "Yeah, he's here now. Please come here as soon as possible." You said that? A. Mm‑hmm. Q. Again in an urgent tone? A. Mm‑hmm. Q. Is that a yes? A. Yes. Q. "The person is still in my property now." You said that? A. Yes. Q. "In the yard, in the front yard." You said that? A. Yeah."
Mr Stretton submits that the misleading impression of the defendant as the victim of an unknown intruder who had not only come onto the defendant's property and hit him, but was remaining on the property and thus an imminent danger, is sufficiently false as an account for the defendant's credit to be completely undermined and as being unable to be accepted unless corroborated (written submissions, paragraph 70).
Not only was the evidence about the assault untruthful, Mr Stretton submits, but so is the evidence about why the plaintiff was at the premises. The defendant told the 000 operator "I don't know why he comes to this place. This is not his place here". Following on from the earlier statement that the assault occurred on "my property", this statement by the defendant must be knowingly false. He was asked at T 123 - 4: "Q. The operator said, "Do you know why he did it, did he say anything? And you said, "No, I don't know why he come to this place. This is not his place here." Do you agree that that's what was said? A. Yes. Q. That was another lie, wasn't it? A. No, not lie. Q. Because you knew why he came there. It was to water the garden for Amy. Correct? A. I don't know. I don't, that's - I don't know he come to water the garden for Amy at that time. I don't know. Q. You see, as you were telling these lies‑‑ A. I don't know what purpose he, he go there for. Q. As you were telling these lies you realised how ridiculous they sounded, didn't you? A. No. Q. That's why you then came up with the story about being pushed over the arch. A. No, not true."
Nor did the defendant tell the operator that the real reason the plaintiff was still on the property was because he was immobile and saying his leg was broken. Instead, he painted a picture of himself in imminent danger: "Q. You were trying to make it sound like you were still scared? Correct? A. That's what I, I feel at that moment. I am not trying to making something. That's what I feeling at that time. Q. You were trying to make it sound like you were still in immediate danger, weren't you? A. I, I don't know. Q. But of course at that time the plaintiff was out there with a broken leg, not moving, do you agree? A. I am not quite sure at that time he is real broken or, or just tell, tell the lie. He may, he may any time stand up to, to attack me again. Q. But he certainly wasn't moving, was he? A. He sit there, who, who knows? Q. In other words, you were just trying to play the victim in this call, weren't you? A. No, that's not true. Q. You were trying to do that to make the plaintiff look like the guilty one. A. I don't know. I, I, I don't agree."
This dishonesty extended in ascribing a motive to the plaintiff for this attack, namely the claim that "maybe he's my ex-wife's boyfriend, I don't know", thereby painting a picture of a dangerous domestic violence-related attack: Q. "Maybe he's my ex‑wife's boyfriend, I don't know." You said that, didn't you? A. Yeah. Q. Do you remember your evidence yesterday was that it wasn't until much later that you thought that? A. Yeah, I confirmed that. That's what I guess. Q. Your evidence yesterday‑‑ A. Yeah, I, I remember that yesterday. Yeah, because my wife, my ex‑wife told my son he, he has been courting my ex‑wife for a long time, after I move out. Q. See, your evidence yesterday was that you only thought he might be your ex‑wife's boyfriend long after the incident, do you agree? A. Yeah, that's confirm, only confirm, yeah, confirm from my ex‑wife. Q. Well, I suggest you were deliberately lying about that, sir. Do you agree? A. Sorry? Q. I suggest you were deliberately lying yesterday when you said that you didn't think he was Amy's new boyfriend. A. No. That's confirm from my son. Q. You lied about it because you didn't want to admit that you had a grudge against the plaintiff. Correct? A. No." (T 123 - 4).
The defendant's concerns for the plaintiff did not extend to calling an ambulance: Q. Now, I suppose after you finished that triple‑0 call you immediately called an ambulance, did you? A. I never call ambulance. Q. Well, after all, you had somebody in the front yard, screaming out with a broken leg, unable to move? Correct? A. Sorry? Q. Well, the plaintiff was in the front yard, screaming out for help, saying he had a broken leg? A. Yeah. Q. You didn't think to call an ambulance in those circumstances? A. No, I didn't. Q. It would have been the decent thing to do, would it not? [OBJECTION] … Q. Yes. A. I am not quite sure whether he's telling lie or not. I, I haven't confirm. He just said he, he - I broke his leg, I want to kill me - because he is telling lie. Who, which one - I never want to kill him, but I don't know which he is telling lie or not. Why I call the, the ambulance? STRETTON Q. You didn't call an ambulance because you were happy to see him injured? Is that right? A. Happy to what? Q. You were happy to see him injured. Is that right? A. No." (T 124 - 5)
The ambulance came because the plaintiff's friend Ms Fung, at the plaintiff's request, rang 000 and an ambulance (Exhibit A tab 21). The unchallenged evidence of the next door neighbor was, it should be recalled, that "during this time Georges stayed in the same spot on the grass and Martin continued to wash his car" (Exhibit C, paragraph 11). Not only was he no danger to the defendant, but he was obviously seriously injured. It is indicative of the defendant's state of mind that he ignored the plaintiff's condition and went on washing his car (I do not accept his evidence that he was polishing his car).
It was next put to the defendant that he had sworn a defence containing a similarly untruthful account of these events, and one which was inconsistent with the version he now gave from the witness box: "Q. Now part of your defence says this, "The occupier" - so this is referring to the property, 64 Endeavour Street, it says, "The occupier was requesting George before 21 December 2012 not return to the property during the period that the owner of the property was overseas since the occupier was fearful of George's aggressive nature." That's what you wrote in your defence, isn't it? A. Mm. … Q. But your son never said to you that he was fearful of the plaintiff, did he? A. No, he said‑‑ Q. He never said that to police either, did he? A. No the police, yeah. I, I don't, I don't think he, he talk to the police. Q. See that's just something you made up, isn't it? A. No. I, I‑‑ Q. You made it up to try and make the plaintiff look bad, didn't you? A. No, because I tell you why, on that day after I left - because you know first time I met George, early December, I was talking to my son in the porch. He come straight and get me out. After that my son saw he's, he's saw aggress(as said) towards me and he finish all the garden job already. Why he come here just for watering the garden? My son told him he - my son can water the garden by himself. He doesn't need to come to the property again because Amy come back from overseas. Q. Your son never said to you that the plaintiff had an aggressive nature, did he? A. No he said, he, he, he‑‑ Q. He didn't say that to police either, did he? A. No he, he - just for that time he, he said - he - why he so aggressive? Q. It's just something you've made up, isn't it? A. No. Q. You made it up to try and make the plaintiff look bad, didn't you? A. No. Q. Another part of your defence says this, "What I did was defensively push him away from me to avoid further assault from him. He tripped over and hit the ground presumably breaking his leg. These facts were witnessed by the occupier as well." That's what you wrote, isn't it? A. I think so, yeah. Q. But the occupier, that is your son, never said to you that he witnessed those things, did he? A. Sorry? Q. Your son never said to you that he witnessed the plaintiff tripping over, did he? A. No he, he, he didn't see this part. Q. Yet in your defence you said, "These facts were witnessed by the occupier as well," didn't you? A. No the - I mean is push by, by George. Not trip over. Q. That's not what it says sir. It says, "What I did was defensively push him away from me to avoid further assaults from him. He tripped over and hit the ground presumably breaking his leg. These facts were witnessed by the occupier as well." A. Yeah, some of these facts, yeah. Because he, he saw I have been pushed by him, water - spray water on me, all have been witnessed. Q. See you were trying to make it look like your son had witnessed everything, weren't you? A. No. Because this just - a what - brief statement, it's not in detail at that time. I don't know how to do it, a detail statement." (T 126 - 8)
The text of this defence paints a picture of the plaintiff and his son seeing the plaintiff trip over and hit the ground. However, in the ERISP, the defendant stated that he did not see how the plaintiff fell down when he was pushed (T 108 - 109). In neither of these accounts is there a description of the plaintiff catching his left foot in the base of the palm tree and falling down with his left leg impacting on one of the retaining wall stones, after causing the defendant to fall over an arch himself, which was how he described these events to the court: "A. It's not, not, not a fighting you know, it's a push. Not fighting. It's a suddenly push. I, I don't expect he - I, I would not expect he will - walks to me and push me. I, I don't have any preparation. Q. He never pushed you, did he? A. No. That's not true. Q. Now you say you fell over this arch. A. Yeah. Q. You say you fell over in about the middle of the arch? A. You know the, the bend, the arch - the photo. I, I damage that - … Q. This is on photograph 3? Yes that's where I'm looking. You're saying it's broken there, is it? A. Yeah, due to my fall, the brick was broken." (T 102).
However, the defendant did give an account to Senior Constable Catto which refers to the plaintiff as coming "to push me", whereupon he "fell over on here", at which time the defendant "fell over there", pointing to a whole. He goes on to say: "And then, and then when I fell over here, he comes here, he comes here, and , and then, I stand, I stand up and push him, that's why he…that's he…he's fell [sic] over."
The defendant points to the hole that is still there where he fell. His description of the plaintiff is one of the plaintiff falling over when the defendant pushes him. There is some evidence of marks at the base of the palm tree (see the video walkthrough at 2.00 - 2.05 minutes). The question of whether these were made by the plaintiff's fall is an issue which I have considered in the section of this judgment dealing with the expert evidence.

[18]

The evidence of the defendant's son, Maan Wong

Maan Wong is the son of Ms Chui and the defendant. On the day in question he was inside the house studying, wearing headphones and listening to music. He claims to have witnessed all but ten seconds or so of the incident, and supports his father's account of these events. He described these in his statement as follows: "9. At or around 2:00pm, I heard yelling from the front yard. I looked outside the window and saw the plaintiff in the front yard with a hose in his hand. The plaintiff and the defendant were yelling at each other, however, I was unable to hear what they were saying because I had headphones on. 10. I saw the plaintiff walk towards the defendant with the hose in his hand from the opposite side of the front yard. The defendant stopped next to the top part of the brick arch in the front yard. The plaintiff then raised the hose, pointed it at the defendant and began to spray the defendant and his car with water. 11. The defendant began walking towards the plaintiff. The plaintiff suddenly threw the hose on the ground near the brick arch and rushed towards the defendant. The plaintiff then raised his arm and pushed the defendant in his chest, causing the defendant to fall over the stone arch. 12. I immediately ran to the front door to go outside and, accordingly, I lost sight of the plaintiff and the defendant for approximately ten (10) seconds. 13. I arrived outside and saw the plaintiff sitting on the ground next to the retaining wall and a palm tree in the front yard. The defendant was standing near the front porch, roughly three (3) meters from the plaintiff. 14. Upon seeing me arrive, the defendant asked me to hand him my mobile phone so that he could call the police. The defendant then called the police and I went to the tap to turn off the water hose. 15. I heard the plaintiff yelling at the defendant in Chinese. Specifically, I heard the plaintiff say "You are a shit man and you can't live without your ex-wife's money", "You should not be entitled to two (2) houses from the divorce", "Amy was so stupid" and "I am the judge for Amy today. You will be in jail as soon as the police come" (this is the closest English translation I am able to provide)."
Before dealing with the issues about which Mr Maan Wong was cross-examined, I should note the chronology of events that are not in dispute: 1. The plaintiff called out "Help me, help me, somebody call the police please" according to Mr Khan (Exhibit C, paragraph 6), which caused Mr Khan to go onto the balcony and observe the plaintiff on the grass, after the assault was over; 2. When Mr Khan came out and saw the plaintiff, he said he would ring up, went inside and asked his daughter to do so; 3. At 1:58:40 pm, the plaintiff makes a 23-second call to Ms Fung to ask her to call the police and an ambulance (see the plaintiff's mobile phone records, Exhibit A, tab 21); 4. When Maan Wong arrived outside, his father asked him for his mobile phone. He went back inside and fetched it, and at 2:00:21 pm the defendant used that phone to telephone the police (Exhibit A tab 23, page 3); 5. At this stage the plaintiff was, according to Maan Wong and the defendant, lying on the ground calling out abuse.
Mr Stretton submits that: 1. Maan Wong says he saw the plaintiff spray his father and then rush towards him (statement, Exhibit 6, tab 11, paragraphs 8 and 10). He describes his attention being drawn by loud shouting. The only loud shouting Mr Khan heard was the plaintiff's calls after the event; 2. If Maan Wong had seen the parties just prior to the assault, and the assault start to happen, he would have seen all of the other events which followed the incident. However, his statement is silent as to seeing the plaintiff's conversation with Mr Khan, or Mr Khan's presence, or the plaintiff telephoning anyone, all of which are events which certainly occurred; 3. If Maan Wong arrived outside at or shortly before 2 pm, this was after the plaintiff's call to Ms Fung, which was in turn after his conversation with Mr Khan. The incident was already over by the time that the plaintiff was calling out to Mr Khan, and well over by the time that the plaintiff called Ms Fung. Not only does this suggest that Maan Wong arrived too late, but the part of the event that he missed while exiting the house could not have been the part that he says he missed; 4. Mr Khan makes no mention of seeing Maan Wong at all, and was not cross-examined about this.
All of the contemporaneous evidence points to Maan Wong having come outside at the end of the assault, returning to the house briefly to obtain his mobile phone, in which case he could not have seen what provoked it.
In cross-examination Maan Wong said he had seen an altercation to the point where the plaintiff had pushed over his father and that he then rushed out of the house (T 169). He described what happened in the next few seconds: "Q. When you rushed outside from the computer room, you saw your dad there and George there as well? A. Yep. Q. Your dad, when you rushed out, turned around and saw you and asked for your phone to call triple-0, something like that? A. Yes. Yeah. Q. What did he say to you when he asked for your phone? Did he say "Maan, I need to call triple-0", or something like that? A. He said I'm to go in and get my phone to call the police. Q. How did he sound when he was saying that? Was he relaxed and calm, or something else?A. He was saying it, I guess it was as you would - I'm not really sure, sorry. Q. Did you then rush in and get your phone, did you? A. Yeah. Q. Was that in the computer room? A. Yep. Q. So you rushed in and got that? It would have taken a few seconds I suppose? A. Yeah." (T 170)
He told the court he had been in the computer room, close to the front door.
This evidence clearly paints a picture of Maan Wong entering and returning to the house in a rush after seeing his father pushed, and returning with the mobile phone, all within the space of about a minute, whereupon his father made the call at 2:00:21. However, the incident had occurred several minutes prior to the plaintiff's phone call of 1:58:40 pm. His father had not been pushed at 1:59 pm, or 1:58 pm, or even 1:57 pm, given the time Mr Khan took to go outside and hear the plaintiff's repeated cries and have a conversation with him.
If Maan Wong was standing by his father when he made the 000 call, he would have known that the information his father was giving to the police was incorrect. Maan Wong knew that the plaintiff had been coming to the property several times a week to do odd jobs for his mother (T 173). He admitted as much in the statement to police (T 174-175), saying: "My mother went back to China about 1 - 2 months ago for a holiday. My mother organised for a family friend, Georges, to come to our house and do some garden maintenance". (Exhibit 6, tab 11)
However, the evidence in his statement in these proceedings was very different: "By November 2012 the plaintiff had competed the painting tasks he was hired to do. In or around early December 2012, the plaintiff attended the Property to water the garden. On this occasion, I reminded the plaintiff that he had completed the tasks he was hired to do, and informed the plaintiff that I would be able to water the garden until my mother returned from overseas. In light of the above, on this occasion, I explicitly told the plaintiff not to return to the property." (Exhibit 6, tab 4, paragraphs 6 - 8)
Maan Wong's answers in cross-examination about this inconsistency were unconvincing: "A. Your answer was "My mother organised for a family friend, George, to come to our house and do some garden maintenance"? A. Yep. Q. That was your answer? A. Yep. Q. You didn't say to the policeman that George wasn't meant to be there? A. No, I didn't say it, yeah. Q. You didn't say that. You didn't say to the policeman "Oh this guy George was coming to do some gardening but I already told him not to come back to the property"? A. No I didn't tell him that. Q. You never told George not to come back to the property, did you? A. I did. Q. When you were describing George to the policeman, you didn't say George was aggressive, did you?A. No. He didn't ask. Q. There's nothing in your statement about George being aggressive, is there? A. No, not in the - no. Q. You never said to him that you thought George was aggressive or had an aggressive nature, did you? A. No I didn't tell the police officer that. Q. You didn't say to the policeman that you were afraid of George, did you? A. No I didn't say that to him. Q. You weren't afraid of George, were you? A. I was a little bit. Q. You've never told anyone you're afraid of George, have you? A. Not really. Q. This whole thing in your statement about telling George not to come back to the property, that's just not true, is it? A. I did tell him not to come back from a previous incident. Q. Sorry? A. I told him after a previous incident. Q. I suggest to you it's something you've just made up to try and help your father's case. What do you say? A. That's not true. Q. You think it'll help your father's case if you say that George was trespassing, don't you? A. I don't know." (T 174 - 5)
He was also asked about a similar claim by the defendant in an earlier defence: "Q. Just to refer you to the next paragraph, which begins "Firstly" and then the end of the third line down from that it says "The occupier", meaning you-- A. Right. Q. --"was requesting George (before 21/12/2012) not return to the property during the period that the owner of the property was overseas, since the occupier was fearful of George's aggressive nature." A. Right. Q. Do you recall reading that before?A. I think so. Q. In other words this defence, this document that's in front of you now is saying that you told George not to come back to the property but he came back anyway, therefore he was trespassing? A. Right, yep. Q. So is this the sequence of events, just so it's clear, when you speak to the policeman on 21 December 2012, you don't mention anything about George trespassing? A. Yeah." (T 177)
These are substantial inconsistencies which must cause serious doubt as to Maan Wong's credibility. The whole of his evidence, and not only his assertion of having seen the commencement of the dispute between the plaintiff and the defendant, is unreliable and inconsistent. Some of this may be due to his concern about the impact of this litigation on his father. His demeanour in the witness box was that of a person under great stress; he looked anxious, spoke slowly and apparently reluctantly, and generally appeared ill at ease.
Taking all of the above into account, I would not accept the evidence of Maan Wong unless it was corroborated.
Senior Constable Catto was also called by the defendant to give evidence. Does his evidence provide corroboration to the defendant's claim of the plaintiff turning the hose on him and then injuring himself?

[19]

The evidence of Senior Constable Michael Catto

Senior Constable Catto was a Constable at the time of these events and was stationed at Blacktown Police Station. He was called to the scene, together with Senior Constable Drew Henry Johnston to investigate a possible assault. Senior Constable Johnston talked to the plaintiff and Senior Constable Catto spoke to the defendant. According to paragraph 7 of his statement of evidence (Exhibit 4), the defendant said words to the effect: "He [the plaintiff] sprayed me [with] a hose and then pushed me over the bricks in the front yard. Then he approached me and adopted a fighting stance. Then I stood up and pushed him over."
Senior Constable Catto has recorded his observations of the following (Exhibit 4, paragraph 8): 1. The defendant's shirt was wet on the bottom right-hand side; 2. The defendant's shorts were wet on the top right-hand side; 3. The defendant's car had a number of droplets on the outside and inside where the defendant claimed to have been standing when he was allegedly sprayed by the plaintiff with a hose; 4. There were marks on the ground consistent with where the defendant stated he was pushed by the plaintiff; and, 5. The defendant's legs contained a number of scratches that appeared to be recent as they were slightly bleeding.
Senior Constable Catto called an ambulance and the plaintiff was taken to Blacktown Hospital. He then conducted a video recording of the defendant's version of events, which he notes at paragraph 10 of Exhibit 4 was the same as the version he had initially told him. That version is as follows: Constable Catto: "Constable Catto from Blacktown Police and can you just say your name for the recording." Martin Wong: "Ah…" Constable Catto: "What's your name?" Martin Wong: "Wong, Wong." Constable Catto: "First name?" Martin Wong: "Zak Wong." Constable Catto: "And date of birth?" Martin Wong: "Twenty October sixty five." Constable Catto: "Yep, so you understand I'm recording this now all right?" Martin Wong: "Yep." Constable Catto: "So you were standing there, and OK … go through, what, what were you doing there?" Martin Wong: "I just polish … and then he, guy comes in, he, firstly he watered here first and then come, lift the hose up, spray, he, when he come to water the garden he first said "You have to go out, you don't have the rights to come in this property, you are a bloody man to treat your ex-wife rar rar rar rar or something … and you have to go out", and then I said "You are the person to go out, not me." I said "Stop doing watering on me", still doing that to me." Constable Catto: "So he was watering you?" Martin Wong: "Yeah, he come to water here …" Constable Catto: "Yeah" Martin Wong: "In the car, and the car as well … the other officer can witness the wet inside." Constable Catto: "So he sprayed you?" Martin Wong: "Sprayed me" Constable Catto: "And your car?" Martin Wong: "in the car too." Constable Catto: "Yep, and then what happened?" Martin Wong: "And then I said "Stop doing this to me", I get close there…" Constable Catto: "So you've walked towards him?" Martin Wong: "Yep, roughly like that. Yeah, he he … just here" Constable Catto: "Yep" Martin Wong: "Roughly I walk here. He roughly stand here and then I get closer and I said "Stop doing this to me", and then he suddenly throw the hose on the, on the ground…" Constable Catto: "Yep" Martin Wong: "and then come to push me … fell over on here." Constable Catto: "Yep" Martin Wong: "And then I hurt all my legs." Constable Catto: "Yep, so I'll just get that. Yep, so you've fallen over, over that." Martin Wong: "Fell over there." Constable Catto: "Yeah, then what?" Martin Wong: "You can, you can still see the hole there, you can … the hole." Constable Catto: "Yep." Martin Wong: "And then, and then when I fell over here, he come here, he come here … and, and then I, I stand, I stand up and push him, that's why he … that's he … he's fell over." Constable Catto: "He's fallen there." Martin Wong: "That's the story, that's it."
On 22 December 2012 Senior Constable Catto attended Blacktown Hospital and conducted an electronic interview with the plaintiff. He describes the interview in paragraphs 11 and 12 of Exhibit 4: "11. On 22 December 2012, I attended Blacktown Hospital and conducted an electronic interview with the plaintiff in relation to the Incident (the "Interview"). During the Interview, I recall the plaintiff saying words to the effect: "He [the defendant] rushed towards me, pushed me over and stomped on my leg." I recall saying words to the effect: "Zak [the defendant] said you sprayed him with a hose." I recall the plaintiff responding with words to the effect: "I did not. The Police saw that he [the defendant] was dry." 12. After the electronic recording had finished, I recall saying words to the effect: "He [the defendant] was wet when I interviewed him." At this time, the plaintiff changed his version of events and said words to the effect: "I saw him [the defendant] wet himself.""
As Senior Constable Catto notes at paragraph 13, the electronic recording of the interview was unable to be saved due to damage of the personal recording device that was used.
On 23 January 2013, Senior Constable Catto attended the home address of the plaintiff and obtained a 9-page statement in his official police notebook number F540519. On this occasion, Senior Constable Catto was assisted by an accredited interpreter, Ms Queenie Liu. He notes in paragraph 14 of Exhibit 4 that: "This version was the same as the plaintiff had supplied at the hospital."
Senior Constable Catto was called to give evidence (T 142 ff). He agreed that he had made the statement (Exhibit 4) seven months after the incident "Basically based on the notebook" (T 145) but still had a good recollection of the events in question.
Senior Constable Catto was cross-examined about the recording of the plaintiff's answer as "I saw him wet himself" as follows: "Q. You also indicate that after you'd stopped the recording you said to the plaintiff, "When I saw the defendant he was wet"? A. Yes. Q. The plaintiff responded to your suggestion and you say the plaintiff said words to the effect, "I saw him wet himself"? A. Yes. Q. That was a conversation two and a half years ago, do you agree? A. Yes. Q. It would be very hard to recall the exact words that were spoken? A. I agree. Q. Do you accept that you can't recall whether he specifically used the words, "I saw" in his response? A. Yeah, I, I - it's only a recollection of what I remember of the conversation. The exact words may have been different. Q. Can I suggest this as a possibility that you said, "He was wet when I interviewed him," and he said, "He wet himself"? A. That could be, yes. Q. Meaning, "Well, I didn't do it so he must have done it himself"? A. Yeah, I can't recall the exact conversation so that could be a possibility." (T 149-150)
This is an appropriate concession for Senior Constable Catto to make. I consider that this was in fact what the plaintiff said, or meant.
Senior Constable Catto gave evidence in a neutral and fair manner. For example, when asked whether the disturbance of the ground underneath the palm tree (of which he took several photographs), could have been made by ambulance officers, he indicated simply that he could not say. The impression I gained of his evidence was that he wished to be of assistance to the court and was not partisan to either of the parties in this litigation. However, his role was simply to record the conflicting statements of the parties and to note relevant evidence. His evidence, while reliable, is not supportive of the defendant's version of events.
This brings me to a consideration of the expert evidence of both parties concerning the mechanics of the plaintiff's injury.

[20]

Expert evidence as to the manner of injury

Both the plaintiff and defendant called expert evidence as to the mechanics of the fall. As noted at the beginning of this judgment, as these proceedings were case-managed only by consent timetables, no consideration was given, prior to the hearing, to these experts giving concurrent evidence, and it was not possible to arrange at the trial as it was simply too late to do so.
The starting point for consideration of the evidence is the expert witness statement of Dr Bachar Hajyounes of 17 July 2013 (Exhibit A, tab 12). Dr Hajyounes, who was not required for cross-examination, was the RMO at Blacktown Hospital when the plaintiff was brought in, but he did not examine or take a history from the plaintiff. He did, however, review the notes and X-rays and, based on his RMO experience, opined: On review of the notes and the xrays, it is my opinion that he has an oblique fracture of the femur. The cause of the injury is most likely a direct high energy trauma. There is no obvious osteoporosis on xray. I do not believe this fracture is likely to be a result of a fall from standing height."
The plaintiff called Associate Professor Nigel Hope, an orthopaedic surgeon, who provided the court with two reports dated 1 April and 14 October 2014. His opinion was that the plaintiff suffered a midshaft femoral fracture "as a result of directed trauma to the middle of the thigh" and that this injury "did not result from a fall." A bone density test dated 4 June 2014 (carried out after Associate Professor Hope's first report) confirmed that the plaintiff did not have osteoporosis. He noted in his first report the plaintiff's description that the defendant "stomped" on the plaintiff's left femur. In his second report, he explained the mechanism of the fracture and how it could not have been caused by a fall.
Subsequent to these reports, the defendant served reports from Dr Neil Berry, a general surgeon, who agreed that mid-shaft femoral fractures are normally associated with direct trauma, with the bone breaking at the point of impact, but doubted that a "stomp" could break someone's femur, because the thigh muscles would cushion the impact. In addition, he had not heard of such cases occurring. He considered that the plaintiff's short oblique fracture indicated a combination of twisting and falling. The fracture therefore indicated the plaintiff's foot was caught, and he then fell onto something, resulting in the leg breaking (it was never explained, however, how this could occur without some kind of injury to the left foot also occurring).
Associate Professor Hope, in cross-examination, AP Hope agreed that if the plaintiff's foot had become caught against a palm tree and he then fell with his mid-thigh bone coming into contact with a low raised brick or stone, that could cause a midshaft femoral fracture of the kind he sustained. The mechanics of the plaintiff's injury could, therefore, be explained in accordance with the defendant's version of injury, as well as in accordance with the plaintiff's description.
A great deal of time in cross-examination and submissions was spent in argument about which of the two experts had better or more relevant qualifications, whether they had consulted the correct texts, whether they had sufficient experience of injuries of this kind and whether they had seen enough patients to warrant giving the opinions that they did. I found this to be of little assistance. Both experts are able to express opinions as to the mechanics of the fall, and both agree that the particular fracture pattern the plaintiff sustained (which was diagnosed after he had told ambulance officers, Ms Fung and possibly also Senior Constable Catto that the defendant had jumped or stomped on his leg) confirm the occurrence of direct high energy trauma to the fracture site.
The issue of the mechanics of the fall can readily be resolved on the facts as having occurred when the defendant stomped or jumped on the plaintiff's leg, because: 1. The plaintiff told the ambulance officers that he tried to get up but was unable to move. Associate Professor Hope stated that movement with such a fracture was impossible. The place where the plaintiff fell was some distance from the stones upon which the defendant claims he had fallen. 2. The plaintiff gave consistent evidence to every person, ranging from the ambulance officer to Ms Fung to the hospital, as well as in his statement, that the defendant had jumped on his leg. By comparison, as counsel for the defendant points out in his written submissions, the versions of events given by the defendant do not refer to the fall on the wall until after he was served with the report of Dr Hajyounes (written submissions, paragraph 61). 3. I must exercise great caution when interpreting photographs (Blacktown City Council v Hocking [2008] NSWCA 144 at [149], [167] - [171]), although the value of expert evidence as to marks on palm trees are uncertain. Of more assistance is the description by ambulance officers that they found the plaintiff sitting up on the grass with his left leg bent underneath him (Exhibit A tab 1 p 2). The unchallenged evidence of Mr Khan was that the plaintiff's feet were "just over a metre from the base of the palm tree and his body was about 2 or 3 metres from the palm tree" (Exhibit C, p. 7), not across the stone blocks where the defendant claimed the plaintiff fell, and too far from the palm tree to have caught his foot, given that the plaintiff would be unable to move any distance with such a fracture. Senior Constable Catto also confirmed that the plaintiff was sitting on the grass in the position shown in the photograph taken of the plaintiff's solicitor sitting in such a spot (T 145 - 6).

[21]

Conclusions as to the manner of injury

The accounts given by the plaintiff, the defendant and the defendant's son appear to suggest three scenarios: 1. The incident occurred as the plaintiff described, namely there was a "stomp" on his leg while he laid on the ground which was without provocation; 2. The incident occurred as the defendant described, in that the defendant did not "stomp" on the plaintiff's leg but pushed him, in self-defence, in circumstances where the plaintiff's fall on the stone wall resulted in the injury; 3. A mix of the two accounts, such as a "stomp" with provocation (namely the account given by the defendant and his son but containing a "stomp").
The following should be noted: 1. The plaintiff's account has consistently been that the defendant "stomped" on his leg and broke it; this was his account both to the ambulance officers and to Ms Fung, as well as to Senior Constable Catto the following day at the hospital and in the subsequent interview with an interpreter (T 148), as well as his evidence in these proceedings, both in his statement and in cross-examination. 2. All of the medical evidence confirms that a fracture of this nature requires direct high energy trauma to the fractured site. 3. The ambulance records and Mr Khan's evidence described the plaintiff as sitting on the grass with his feet just over a metre from the base of the palm tree and with his body about 2-3 metres from the palm tree (Exhibit C, paragraph 7). I am satisfied that he did not move once his femur was broken. In those circumstances, he could not have hit his left thigh on the stone wall as claimed. 4. The plaintiff's call for help was answered by Mr Khan, whose observations (including his observation of the defendant continuing to wash his car, his failure to observe the defendant's son in the yard and his failure to recall hearing the plaintiff continuing to yell abuse) are central to the fact finding in this case. 5. Whether or not the defendant did fall over the brick arch, or in some way was injured, in such a way as to cause the scratches that are seen in the photographs, this could not have happened in the course of the plaintiff's fall to the ground.
Having regard to each of the matters set out above, independently of any finding as to credit, and independently of the expert evidence, I am satisfied that the plaintiff could not have fallen on the stone wall as alleged, and that he did not catch his foot on the palm tree as alleged, and that the cause of the accident is the version the plaintiff gave within minutes of the incident, namely that the defendant "stomped" on his leg, causing it to break.
The defendant conceded that at no stage could he have any reason to stomp on the plaintiff's leg if he was in fact lying on the ground: "Q. You say you never stomped on his leg, correct? A. Never. Never. Q. You agree that you never had any reason to stomp on his leg, I understand you say you didn't do it, but I'm putting to you that you never had any reason to do it either. A. Yeah, I don't have reason to stomp on his leg." (T 118)
Accordingly, if the defendant did stomp on the plaintiff's leg while he was lying on the ground, it was an assault and battery for which the defendant must be liable.
Even if there had been some form of provocation by the plaintiff preceding the stomp, namely spraying the defendant with water or pushing him over the arch or both, while that may reduce the award of damages, it is not a defence to the claim for assault and battery, as counsel for the plaintiff points out in his written submissions, citing Fontin v Katapodis (1962) 108 CLR 177.
Mr Stretton goes on to submit (written submissions, paragraph 81) that if the plaintiff's leg was broken through a push and not a stomp, I would still not be satisfied that the push was in self-defence. The defendant had plenty of means of escape or avoidance of the plaintiff, and had no need to step towards the plaintiff and push him. It is submitted that by failing to avoid the confrontation, a finding of self-defence is not available (Fontin v Katapodis at 182 and 186).
For the above reasons, I am satisfied that the assault occurred in the manner described by the plaintiff, and that the injury the plaintiff suffered to his femur occurred as a result of the defendant jumping or "stomping" on his leg. If I have erred in this finding, I am nevertheless satisfied that any response by the defendant to the plaintiff was not in self-defence, and that by failing to avoid the confrontation a finding of self-defence is not available.

[26]

Schedule of damages

The plaintiff provided a schedule of damages as follows: CATEGORY RANGE SUGGESTED General damages 90,000 120,000 110,000 Interest on past general damages (2.5 years to date at 2% interest rate on proposed 50% past component) 2,250 3,000 2,750 Aggravated damages for insult, humiliation and/or non-bona fide denial of liability 0 10,000 10,000 Exemplary damages 5,000 35,000 30,000 Past out of pocket expenses 575 575 575 Future out of pocket expenses: 23,731 36,660 30,060 Pain relieving / sleeping medication (4,335) (8,164) (8,164) Removal of femoral nail (10,000) (10,000) (10,000) Sessions with psychologist (2,400) (3,600) (3,000) Sessions with psychiatrist if condition deteriorates (3,500) (8,400) (3,500) Pharmacotherapy (600) (3,600) (2,500) Shower grab rail (150) (150) (150) Recliner lounge (including replacement) (1,609) (1,609) (1,609) Vacuum cleaner (including replacement) (1,137) (1,137) (1,137) Past loss of earning capacity (buffer) 10,000 25,000 20,000 Future loss of earning capacity (buffer) 20,000 50,000 30,000 Domestic assistance (past) 5,069 5,069 5,069 Interest on past domestic assistance (2.5 years at 2%) 253 253 253 Domestic assistance (future) 45,000 60,000 60,000 Total of damages and interest 201,878 345,557 298,707

[28]

General damages

The plaintiff, who was born in 1949 and is currently 65 years of age, was born and lived all of his life except the last nine years in Port Vila, Vanuatu. His education in Vanuatu was only to the end of primary school. He has spoken Cantonese for the whole of his adult life and speaks some limited French and about the same amount of English.
Having been granted permanent residency in Australia in December 2006, he worked at a smash repairer's yard for two years repairing vehicles for approximately $500 per week, as a restaurant kitchen hand for less than a year, and, between September 2010 and October 2012, as a cleaner, earning $255 per week before tax (Exhibit B, paragraphs 41-43).
Although he is divorced, he returned to live with his former wife and their two sons in 2012 to help care for her as she was diagnosed with cancer. I understand she passed away during the adjournment of this hearing.
After the plaintiff stopped working as a cleaner, he worked casually as a self-employed handyman, essentially for friends and through word of mouth. He said he thought he earned $350 per week from these jobs, but as the job was cash in hand and he did not keep records, this is uncertain.
The plaintiff's injury was a significant factor which Associate Professor Hope considered caused a moderate functional loss. He summarised the plaintiff's ongoing disabilities as follows: 1. Left femoral pain and weakness; 2. Loss of the ability to ascend and descend hills, lift more than 5 kgs, and limitations of sitting and standing time; 3. Left leg scarring, painful walking pattern, quadriceps weakens and wasting and a mildly stiff left hip; and, 4. Sleep disturbance and rest pain requiring Panadol four days a week.
Associate Professor Hope noted that there was no evidence of exaggeration, symptom fabrication or functional overlay. His condition was stabilised and would not improve.
Dr Peter Klug, a forensic psychiatrist, provided a report as follows: "From a psychiatric perspective, Mr. Wong is suffering from a chronic adjustment disorder with mixed features of anxiety and depression. An adjustment disorder is not a major mood disturbance but is nevertheless a significant psychiatric entity characterised by excessive distress and/or dysfunction in response to a significant stressor or stressors. In Mr. Wong's case the stressors are the experience of the incident itself plus the consequences of the incident. There are features of a chronic post-traumatic stress disorder but, from the history I obtained, his symptoms are insufficient to meet the full criteria. It is possible that he suffered from a full post-traumatic stress disorder and that his symptoms are in partial remission." (Emphasis given by Dr Klug)
As a witness, the plaintiff struggled to express himself about these ongoing problems. He clearly found the issues difficult to talk about. He has described, in his statement, his condition since the accident as follows: "25. Since the incident I have had constant pain in my left thigh (towards the knee, in the middle and towards the hip). My left hip is also stiff. I did not have these problems before the incident. 26. The pain in my thigh gets worse if sit, stand or walk for long periods. It is also painful to do household tasks such as lawn mowing, vacuuming, cleaning and shopping. I was able to do these activities without any trouble before the incident. 27. I now take Panadol daily to help with my thigh pain, and sometimes I take sleeping tablets (Circadin) to help me sleep, but I try not to depend on sleeping tablets. Because of the pain, it is hard to sleep without medication. I did not need regular painkillers or sleeping medication before the incident. 28. Even with medication, I still wake up in pain sometimes during the night, and I continue to have recurrent nightmares. I also have intense "flashback" experiences to the incident, which cause me a lot of distress. I also find myself preoccupied with the incident at other times, and I have a general sense of being very disappointed, which I did not have before the incident. 29. Since the incident I have found it hard to concentrate and remember things. I have to try harder to stay focused on things. I also have recurrent headaches. I did not have any of these problems before the incident. 30. I am now very self-conscious about the way I look because of my limp and other problems since the incident. I think of myself as a disabled person now. 31. I used to enjoy regular social outings to places like Cabramatta, Darling Harbour and the Opera House. I used to go on these outings when I had free time, about 2 or 3 times a month. I don't go on those outings anymore, because I am self-conscious about my limp. Also, walking is painful and I can't walk at a normal pace, so I am worried about slowing friends down if I walk with them. 32. I also feel distressed and disappointed about the police investigation into the incident. The police did not press charges against the defendant and I feel this is unjust."
Ms Fung confirmed that he had withdrawn from social events since the incident (Exhibit A, tab 21, paragraphs 3, 10 and 11).
Damages for an assault involving a fractured leg are, counsel for the plaintiff submits, generally compensated by an award of general damages of between $90,000 and $120,000. I must be careful, when assessing damages, not to err on the high side of the award by reason of there being no claim for aggravated or exemplary damages (the reason for this is that no particulars of these damages was provided in the statement of claim, apparently by oversight). The plaintiff has substantially recovered from the accident, in part because of his good attitude towards his health and well-being, as Associate Professor Hope notes. I am of the view that the $75,000 proposed by the defendant is too low, and that an award for general damages should be in the sum of $90,000. In making this award, I also take into account the plaintiff's age (Reece v Reece (1994) 19 MVR 103).
Interest on this sum is agreed to be $2,250. I shall, however, leave the calculation of the interest sum to the parties, as the hearing of these proceedings had to be adjourned by reason of inadequate listing time provided by the parties to the court.

[30]

Domestic assistance (past and future)

The entitlement to domestic assistance must be demonstrated by careful analysis of the assistance required in the method explained by the New South Wales Court of Appeal in Sampco Pty Ltd v Wurth [2015] NSWCA 117. In the present case, this has been attended to by the report of Ms Mullen, who made the following findings: 1. The plaintiff reported (at the time of the assessment) constant left hip and knee pain which he rated at 5/10, which "increased to 8/10 after prolonged standing and walking such as when lawn mowing, vacuuming, cleaning and shopping", but "reduced to 0/10 at night after taking pain medications…and a sleeping tablet"; 2. personal activities of daily living which are impacted by his condition include sitting (prolonged sitting exacerbates the pain), mobility (limp, reduced balance, difficulty crouching/kneeling), showering and dressing (modified technique required), and bed mobility (lying on his left side increases the pain); 3. domestic activities which are impacted include vacuuming ("[u]sed to vacuum entire house in 1 hour but now only does 5 minutes at a time then rests then continues for 5 minutes [sic] periods"), cleaning the bathroom ("[d]ifficulty crouching and kneeling to scrub shower floor and bath"), lawn mowing ("[u]sed to mow for 1 hour straight and do front and backyards [sic], but [n]ow needs lots of rests and take 3 hours over a couple of days…[l]eft hip and knee pain increased after lawn mowing"); 4. The plaintiff "has been unable to return to work… Considering his age, pain and physical limitations, history of manual labour and limited English, finding alternative employment would be difficult"; 5. in the 8 weeks after the incident, the plaintiff received around 18 hours a week of domestic assistance from his ex-wife and sons as he was unable to do household chores; 6. given his limitations, the plaintiff would benefit from a shower grab rail, a recliner lounge chair with elevating leg rest, and a lightweight stick vacuum cleaner; and, 7. The plaintiff also now requires assistance from a commercial care agency for moving furniture and vacuuming (0.5 hours/week), scrubbing the bath and shower (0.5 hours/week), spring cleaning before Chinese New Year (washing windows, cleaning gutters, washing roof - 12 hours annually, 0.23 hours/week), and lawn mowing (0.5 hours/week).
Ms Mullen notes that the plaintiff's current vacuum cleaner and lawnmower use is over his 5 kgs safety limit and that he should not be using them. Similarly, while the plaintiff has told Associate Professor Hope that he could perform all activities of daily living except washing the tiles on his roof, this is clearly an unrealistic assessment of his own abilities. Ms Mullen's careful report, based on her direct observation of the plaintiff performing relevant tasks, complete with photographs and measurements, demonstrated that a number of activities including moving furniture were functions of the plaintiff should not perform.
When considering past and future care, counsel for the plaintiff was careful to take into account the New South Wales Court of Appeal's warning in Metaxoulis v McDonalds Australia Ltd [2015] NSWCA 95 and to make a significant discount for the fact that this had occurred when the plaintiff was aged 63.
The plaintiff should be entitled to past domestic assistance of $5,069. However, having regard to the future, given the plaintiff's general state of good health and age, I propose to award only a relatively small buffer, and I have accordingly allowed $30,000.

At a glance

Court

Decision date

Source

Judgment (35 paragraphs)

Parties

Cases Cited (12)